National Green Tribunal
Mr. Ajay Jayvantrao Bhosale vs Union Of India on 29 November, 2024
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
**********
Original Application No.65/2019(WZ)
I.A. No.102/2019(WZ)
IN THE MATTER OF:
MR. AJAY JAYVANTRAO BHOSALE
R/o- 25B, Cycle Society, Nana Peth,
Near Y.M.C. Club, Pune- 411 011.
.....Applicant
Versus
1. UNION OF INDIA
Through Secretary,
Ministry of Environment and Forest
Paryavaran Bhawan, CGO Complex,
Lodhi Road, New Delhi -110 001.
2. CHIEF SECRETARY,
Government of Maharashtra,
Annex Building, Mantralaya,
Mumbai - 400 032.
3. THE PRINCIPAL SECRETARY, ENVIRONMENT DEPT.
Government of Maharashtra,
Room No.217, 2nd Floor,
Annex Building, Mantralaya,
Mumbai-400 032, Maharashtra.
4. STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT
AUTHORITY- MAHARASHTRA (SEIAA)
Through Member Secretary
15th Floor, New Administrative Building,
Mantralaya, Mumbai-400 032, Maharashtra
5. STATE EXPERT APPRAISAL COMMITTEE (III)-
MAHARASHTRA (SEAC-III)
Through Member Secretary,
15th Floor, New Administrative Building,
Mantralaya, Mumbai-400 032, Maharashtra
6. MAHARASHTRA POLLUTION CONTROL BOARD
Through Member Secretary,
Kalptaru Point, 3"1 Floor, Near Sion Circle,
Opp. Cine Planet Cinema, Sion (E),
Mumbai-400 022, Maharashtra
7. MAHARASHTRA POLLUTION CONTROL BOARD
Through Regional Officer
Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 1 of 50
Jog Centre, 3rd Floor, Mumbai-Pune Old Highway,
Wakadewadi, Pune-41 1 003, Maharashtra
8. PUNE MUNICIPAL CORPORATION
Through Municipal Commissioner
Main Building, Shivaji Nagar, Pune-411 005.
9. BUILDING PERMISSION DEPARTMENT-PMC
Through City Engineer,
Pune Municipal Corporation,
Shivaji Nagar, Pune-411 005.
10. COLLECTOR OF PUNE
As Collector and President of District Environment
Protection Committee-Pune, Collector office, Bund
Garden, Pune-411 001.
11. M/s. BRAMHACORP LIMITED
Through its Directors
Having Registered Office at: 3, Queens Garden,
Residency Club, Pune-411 001.
.....Respondent(s)
Counsel for Applicant:
Mr. Tanaji Gambhire, Advocate
Counsel for Respondent(s):
Mr. Rahul Garg, Advocate for R-1/MoEF&CC, R-8 & 9/PMC
Mr. Aniruddha Kulkarni, Advocate for R-3/Envtt. Deptt.,
R-4/SEIAA and R-5/SEAC-III
Ms. Manasi Joshi, Advocate for R-6 & 7/MPCB
Mr. R.B. Mahabal, Advocate for R-11/PP
PRESENT:
Hon'ble Mr. Justice Dinesh Kumar Singh (Judicial Member)
Hon'ble Dr. Vijay Kulkarni (Expert Member)
Reserved on : 07.11.2024
Pronounced on : 29.11.2024
JUDGMENT
1. This application has been filed with the prayers that direction may be issued to the Respondents to demolish the illegal structures at the site in question and restore the area to its original position or in alternative, direction may be issued to respondent No.11-M/s. Bramhacorp. Ltd. to Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 2 of 50 handover the project site including all the structures to the Government Authority; and having regard to the damage to the public health, property & environment and principles of sustainable development and polluter pays principles, direct the respondent No.11-M/s. Bramhacorp. Ltd. to deposit a heavy amount of compensation to the environment relief fund.
2. In the body of this application, it is submitted that respondent No.11 has undertaken the project- "M/s. Bramhacorp. Ltd." at Survey Nos.13/1, 13/2, 13/3 of Village-Kondhwa-Khurd, Taluka-Haveli, District- Pune on total land area 17433.10 Sq. Mtrs. without obtaining prior EC from the respondent No.4- SEIAA and Consent to Establish from the respondent No.7-MPCB and has completed most of the construction activities. The details of the actual constructions carried out at the site in question are as follows:-
"
Description EC & C to E Completed Under Total
Construction Proposal
Permission
Building 0 4 1 5
Flats 0 194 55 249
Floors 0 B+G+Podium+11 5 to 11 for C B+G+P+11
Bldg.
Built-Up 0 35000 6500 41500
Area (M2) "
3. Further, it is mentioned in this application that the respondent No.11- Project Proponent undertook the excavation activity in the year 2007 and is carrying on construction activity till date. The BUA of the project was more than 20,000 Sq. Mtrs., but PP did not apply for Environment Clearance and Consents; PP has not obtained any prior Environment Clearance from SEIAA or MoEF and carried out the construction of 41,500 Sq. Mtrs., comprising of 5 residential buildings, 249 flats with B+G+P+11 floors in an illegal manner; PP completed part project in mid of 2014, but did not apply for Consent to Operate and put Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 3 of 50 the project under enjoyment without the same; PP has extracted huge quantity of ground water from three bore-wells for construction of the project without any permission from the competitive authority and without any test for ground water contamination and quality of water; PP has not provided any solid waste management system and waste generated is dumped to PMC waste yard creating burden on public systems nor has the PP provided any energy conservation system for energy saving; PP has not provided rain water harvesting system for ground water recharge; PP has not preserved top layer of fertile soil nor has made tree plantation as per the norms; PP has provided swimming tank giving additional burden on the ground water; PP has installed 3 DG sets at the project site and operation of the same is causing air pollution, huge quantity of sewage water is generated, for treatment of which no steps have been taken by the PP; PP has not installed scientific treatment of sewage water; Project Proponent has also indulged in illegal activities and has given rise to the violation of environmental protection enactments causing substantial damage to the environment and ecology, which would amount to more than Rs.400 Crores.
4. It is further mentioned in this application that the respondent No.4- SEIAA had issued Show Cause Notice dated 15.06.2019 to the Project Proponent and respondent Nos.6 & 7-MPCB had also issued Warning Notice to it on complaint of the applicant, yet no heed was paid by it. PP has completed the construction work of A, B, D & E buildings without prior Environment Clearance, hence it amounts to violation of EIA Notification, 2006. Therefore, it is necessary to assess the impact on air and water and take remedial measures.
5. It is further mentioned in this application that the respondent Nos.8 & 9-PMC had issued various sanctions on 30.12.2005, 28.08.2006, Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 4 of 50 08.01.2007, 06.04.2009, 17.03.2012, 04.03.2014, 15.07.2014 and 21.06.2017. The Google images would show that the actual construction had started near about 2007 i.e. after the issuance of EIA Notification-
2006 i.e. on 14.09.2006. The PMC had imposed the condition no.20 for obtaining environmental clearance vide Commencement Certificate dated 21.06.2017, which stipulates as follows:-
"20 As stated as per order 12th December, 2012 of Hon'ble Environment Department for planning proposal of total construction area of more than 20000 Sq. Meter it is mandatory to obtain no objection certificate of Environment Department of Central Government. Wherever necessary it is mandatory to file no objection certificate of Maharashtra Pollution Control Board at the time of construction permission".
6. It is further mentioned in this application that the project in question is situated on hill area, height of which is found to be 18.50 Mtrs. and the running length in the plot is found to be 210 Mtrs. PP has cut the steps with slope 1:5, which amounts to infringements of the environmental laws. The total Built Up Area of the Project in question is 41,500 sq. mtrs., details of which are as follows:-
"
"Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 5 of 50
7. It is further mentioned in this application that the Project Proponent has constructed two basements using 1,68,075 Litres of fresh water per day without any prior permission from the PMC. The Project Proponent has not installed any solar panels and is using Coal based power plants for energy development, which emits huge CO & other greenhouse gases in the air leading to huge pollution, hence this application has been moved with the above-mentioned prayers.
8. This matter was first considered by the Tribunal on 22.10.2019 and after considering the facts and circumstances, a Joint Committee was constituted comprising State Level Environment Impact Assessment Authority (SEIAA), Maharashtra; and Maharashtra Pollution Control Board (MPCB) to verify the facts and circumstances set out in the present Original Application and submit a report.
9. In compliance with the above-mentioned order, the Joint Committee has submitted its report on 07.01.2020 after visiting the site in question on 15.12.2019, in which following observations are made:-
"Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 6 of 50
"
10. From the side of respondent No.11- M/s. Bramhacorp. Ltd./Project Proponent, reply affidavit dated 24.10.2021 has been filed, wherein it is submitted that present application is hopelessly time barred. The cause of action pointed out in the present original application does not indicate the cause giving rise to 'substantial question related to environment'. Regarding maintainability, it is submitted by the respondent No.11 that the project at the site in question was initially sanctioned on 14.09.2005 and even the revised layout plan of all the buildings was sanctioned on 30.06.2006, consisting of Buildings A and B with 4 wings and Buildings C, D and E with 5 wings. This entire structure, which stands at the site in question as on date, was sanctioned on 30.06.2006. Layout sanction of 30.06.2006 was for FSI area of 21,177.33 m2, as against the actual FSI Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 7 of 50 area constructed of 21798.69 m2. (At that time, in the Corporation, only FSI area was considered and mentioned. Non-FSI area was not considered or mentioned in the plans approved). There were total 248 tenements in the initial approved layout plan, as against now total 249 tenements. Earlier refuge area is shown in one wing of each building, whereas now, it is common between the wings.
11. It is further mentioned in this affidavit by the respondent No.11 that the project in totality was conceived, planned, approved prior to the EIA Notification and even work commenced on it. The cause of action mentioned in the application is the revised building plans sanctioned on 21.06.2017. The delay in filing the present application is of 789 days or 607 days from the expiry of even grace period of limitation of six months, under Section 14(3) of the National Green Tribunal Act, 2010. There is no explanation of delay nor has any application for its condonation been moved by the applicant. On this ground alone, this application should be rejected.
12. It is further mentioned in this affidavit by the respondent No.11 that the first ever sanctioned building plan for this project was made on 14.09.2005 and the project started on that date, which is ongoing in open, visible to all the local citizens for the past 15 years. A sincere person would have raised objections immediately when the cause of action first arose and not after this long delay. Applicant claims to be a local resident and ought to have been aware of this ongoing development over the last 15 years. But he did not challenge it earlier before any Court of law nor before this Tribunal, which came in force in the year 2010. Even the application under Section 15 of the National Green Tribunal Act, 2010 ought to have been filed within a period of five years from the date on which cause for such compensation or relief first arose. Even the specific provision of law Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 8 of 50 of the limitation period of five years is only in respect of the cause for such compensation and relief and not for restitution. As such, in any case, application can't even demand the demolition in the prayer clause, which is squarely barred by limitation.
13. It is further mentioned in this affidavit by the respondent No.11 that each violation, non-compliance and delay may not cause damage to environment. This would remain a matter of facts and verification at the site related to damage that was caused to the environment. The same would have to be identified, determined and quantified. The plan for restoration of environment has to be worked out by the experts and the same should be implemented. If there is violation of the letter of law, spirit is followed due to prior planning, incorporation of most of the environmental features as a part of the planning, the damage to environment may be minimal. This too will have to be examined by the third-party experts, deliberated before SEAC/SEIAA for their appraisal and checking by enforcement agencies like MPCB, CPCB and MoEF&CC.
14. It is further mentioned in this affidavit by the respondent No.11 that EC was not applicable to this project, as the project was not a new project. It was the same old project as planned and approved on 30.06.2006. There were amendments but that doesn't make it a new project. FSI area and number of tenements have remained almost the same, as stated earlier. All other changes were approved under MRTP Act and DC Rules, for the last building C, which also was started on 15.07.2014. Therefore, cause of action, if at all any, would be treated to have arisen at that time and not in the year 2017. Further, it is mentioned that what can't be measured now is only the background levels of AAQ, Soil and Ground Water Quality in the area. However, if these parameters are checked today and if they meet the relevant applicable standards, on-site and off-site, then there remains Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 9 of 50 no 'substantial question related to environment'. What would then remain objectionable is the violation going ahead with the construction work without having the EC, assuming as alleged but not admitted. In the case in hand, the entire construction was done as per the building construction plans prepared by a professional Architect, which were in accordance with the MRTP Act and DC Rules and the permissible FSI was used as allowed.
15. It is further mentioned in this affidavit by the respondent No.11 that the first project was started in the year 2005, well before even when the EIA Notification, 2006 came into force. It was completed in all respect and premises were sold and possession handed over to the buyers. They have formed their gated community and there is no control over it of the answering respondent. It is further submitted that the last building of the project started thereafter on 15.07.2014. There was time gap of 5 years, after completion of earlier buildings. The last building was started only when it became commercially viable after change in rates of saleable spaces, availability of floating FSI/TDR. Further, it is mentioned that it was not the expansion of the earlier project or modernization of the earlier project as it is in the case of any industry. It was a part of the plan as shown and sanctioned in the layout on 30.06.2006. Clauses 2(ii) and 2(iii) of the EIA Notification do not relate to buildings of one pre-sanctioned layout constructed over a period of time. There was no limit for constructing the sanctioned layout plan. If this would have been the case, entire individual layouts standing on the land owned and leased by CIDCO, MHADA, HUDA, DDA, MIDC, NAINA, SEZ, MIHAN, and even the smallest stand-alone building would have been bound to go for the EIA and EC, just because the owner of land is one.
16. It is further mentioned in this affidavit by the respondent No.11 that though in this case, there is no need or occasion to go before the SEAC / Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 10 of 50 SEIAA for EC, as the project already fulfils the environmental obligations by incorporating almost all the features under the MRTP Act / DC Rules. Further, it is mentioned that building 'C' was also shown in the old sanctioned layout of the project on 30.06.2006. If this was treated as part of the pre-sanctioned old project, then it didn't require the EC as the project was old and not new. If this project was to be considered as new project, then area of the project was <20,000m2. Therefore, two projects are totally different, separated by period of over five years. There is nothing in common, as far as utilization of the earlier assets handed over along- with buildings to earlier buyers. PP had lost the physical control over it. The new separate project building plan was having (Plot area) 3183.83 m2 area in the year 2017. The EIA Notification dated 14.09.2006 is common for the various kind of project categories. It covers mining projects, manufacturing industry and building construction projects. This new project was not like the addition of capacity to the same industry, which remained with the same owner and/or continued to produce with the total capacity.
17. It is further mentioned in this affidavit by the respondent No.11 that PP has prepared the self-assessment of Environmental Damage Assessment (EDA) and Environment Management Plan (EMP). This is based on the EC Violation Notification dated 14.03.2017. The window for the same is closed, even if PP wants to take the advantage of it. But environment can be allowed to be benefitted from the concepts, that have been directed to be implemented in the cases of violation. Further, it is mentioned that the Joint Committee of MPCB and SEIAA, appointed by this Tribunal, has already submitted Visit Report dated 07.01.2020 and consequent findings as well. All the issues pointed out by the Committee may be implemented in addition to the findings related to independent Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 11 of 50 EDA given by the Civil Department and Environment Laboratory of Government College of Engineering, Pune. This is subject to technical feasibility and acceptance by the Joint Committee of SEIAA- Maharashtra and MPCB, subject to final approval of this Tribunal. Further, it is mentioned that water for building construction was purchased from the tankers and the PMC. The project was not appraised by SEAC or SEIAA, there might have been few things, that can be done additionally.
18. It is further mentioned in this affidavit by the respondent No.11 that treated sewage is connected to PMC sewer lines, which charges Sewerage Tax in the bills issued to flat owners. The sewage is treated collectively in Koregaon, wherein 130 MLD STP is provided for the entire area. PMC has the 'Consent to Operate' from the MPCB for the entire city. Having cited these facts, it is prayed that this matter may be decided in the light of the preliminary objections raised above and also, matter may be adjudicated on merit, on whether two projects can be treated as one project, when separated by time, and there being nothing of the nature of expansion or modernization of the first project.
19. Respondent Nos.6 & 7- MPCB has filed reply affidavit dated 28.01.2022 stating therein that on the basis of non-compliances observed by the Joint Committee in their report cited above and pursuant to that, MPCB had issued directions to the Project Proponent on 04/01/2020 for failure to comply with the provisions of Water (Prevention & Control of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution) Act, 1981. Further, it is mentioned that the Project Proponent has already completed the construction of 5 residential buildings. But due to Covid-19 pandemic situation since March 2020, the Respondent-Board could not take further action against the Project Proponent. The answering respondent has assessed the Environmental Compensation against the Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 12 of 50 Project Proponent. As per the calculation given in para no.4, Sub-Para (i) to (iii), it has been split into two columns- Environment Compensation for started construction activity without obtaining consent to Establish from the Board to the tune of Rs.10,29,84,375/- (Ten Cores Twenty-Nine lakhs Eighty-Four Thousand Three Hundred Seventy Five only); and in respect of Environment Compensation with respect to building possession of which is given to the tenants without obtaining Consent to Operate from the Board, EDC is calculated to the tune of Rs.16,54,12,500/- (Sixteen Cores Fifty Four lakhs Twelve Thousand and Five hundred only), then total Environment Compensation = EDC for not obtaining CTE + EDC for not obtaining CTO= Rs.10,29,84,375/- + Rs.16,54,12,500/- = Rs.26,83,96,875/- (Twenty-Six Cores Eighty-Three Lakhs Ninety-Six Thousand Eight Hundred Seventy-Five only).
20. Respondent No.4- SEIAA has filed reply affidavit dated 28.01.2022, wherein it is submitted that the Project Proponent had not been granted Environmental Clearance nor had the Project proponent applied for prior Environment Clearance as required under EIA Notification, 2006 for the construction in question. In para no.4 of this affidavit, it is mentioned that Ministry of Environment and Forest vide Notification dated 7th July, 2004 made further amendments in paragraph 3 of the Notification dated 27th January 1994, wherein following is inserted after sub-para (f):-
"(g) any construction project falling under entry 31 of Schedule-I including new townships, industrial townships, settlement colonies, commercial complexes, hotel complexes, hospitals and office complexes for 1,000 (one thousand) persons or below or discharging sewage of 50,000 fifty thousand) liters per day or below or with an investment of Rs.50,00,00,000/- (Rupees fifty crones) or below."
21. After having cited above, it is further submitted in this affidavit by the respondent No.4 that new construction projects, which were Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 13 of 50 undertaken without obtaining prior EC, have not come up to the plinth level, hence would require clearance under the said Notification with effect from 7th day of July, 2004. It is further mentioned that Project Proponent has not applied for EC to the Environment Department.
22. Rejoinder affidavit dated 05.09.2022 has been filed by the applicant against the reply affidavits of respondent No.11-PP dated 24.10.2021, respondent No.4- SEIAA dated 28.01.2022, respondent No.6 & 7-MPCB dated 28.01.2022 and objections to the Joint Committee Report dated 07.01.2020, wherein it is submitted that applicant has approached this Tribunal for restitution & restoration of the public property, public health and environmental compensation, on account of damage caused by the PP due to its illegal construction. Apart from the above principal contentions, applicant has also raised ancillary violations in support of principal contentions, which have already been cited above by us. It is reiterated by the applicant that the construction raised by the Project Proponent is without having EC and Consent to Establish & Consent to Operate. The respondent No.11- Project Proponent has admitted that an application dated 05.05.2022 seeking ex-post-facto Environment Clearance had been moved before the SEIAA- Maharashtra under SOP & OM dated 07.07.2021, issued by the MoEF&CC for the applications of regularisation of violations cases received under EIA (Violation) Notification dated 14.03.2017.
23. It is further mentioned in this rejoinder affidavit by the applicant that respondent No.11-PP had filed application for ex-post-facto EC under EIA (Violation) Notification dated 14.03.2017 and hence the said application dated 05.05.2022 was not a valid application and also not maintainable and tenable in the eyes of law, as the same has been filed after lapse of amnesty period under the Notification dated 14.03.2017. The Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 14 of 50 Project Proponent has admitted the parameters causing irreparable damage to the environment in the said application dated 05.05.2022 for ex-post-facto Environment Clearance. The SOP & OM dated 07.07.2021, issued by the MoEF&CC, is illegal and not tenable in the eyes of law, as the MoEF&CC cannot issue such SOP & OM replacing statutory provisions, enforced after due process of law and there is no legal sanctity to this SOP. The SOP & OM dated 07.07.2021 is only applicable to the proposals filed under Notification dated 14.03.2017 seeking ex-post-facto EC. Hence, it does not mean that the polluter may go scot free for their past violations.
24. It is further mentioned in this rejoinder affidavit by the applicant that SOP & OM dated 07.07.2021 is nothing but facilitating the lobby of the polluters against the directions issued by the Hon'ble Supreme Court in Common Cause Case (2017) and in Goel Ganga Case (2018) and no such OM & SOP was required to be issued in contradiction with the settled position of law. The said SOP & OM dated 07.07.2021 does not help in the present case to overcome its violations committed till date by the Project Proponent and if any EC is ssued in the present case, the same EC would come into force only after its grant and therefore, PP is liable and responsible for the past violations. There is an admission on the part of the Project Proponent to have built the construction to the extent of 50,548.37 M2 area. Project Proponent has also admitted in its reply that the project in question may be treated either old or new and that it has urged that EDC amount may be got examined through MPCB, CPCB or MoEF. Project Proponent has accepted the environmental damage to have been done and is ready to pay the environmental compensation.
25. It is further mentioned in this rejoinder affidavit by the applicant that the Joint Committee in its report dated 07.01.2020 has calculated the Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 15 of 50 EDC amount under the head violation relating to Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, to the tune of Rs.26,83,96,875/- (Twenty-Six Cores Eighty-Three Lakhs Ninety-Six Thousand Eight Hundred Seventy-Five only) after having readiness and willingness from the Project Proponent. Respondent No.11-Project Proponent itself has admitted that the construction of the building 'C' was started on 15.07.2014 and Part- III occupancy was received on 01.09.2018 and Part - IV of the occupancy was received on 18.01.2019 with last revision from PMC on 21.06.2017. The respondent No.11-Project Proponent has also admitted that it was dependent on the Common STP of PMC installed at Koregaon. It means that the STP installed for the project was not functional. The STP required for the project was of capacity 158 KLD, however, PP installed STP of only 70 KLD capacity, which too was not in operation. The Project Proponent has caused substantial damage of more than Rs.400 Crores to the environment and ecology, which needs to be recovered from the PP.
26. With respect to EDC, It is further mentioned in this rejoinder affidavit by the applicant that the construction is done without Environmental Clearance and without obtaining CTE & CTO, hence the same is calculated as follows:-
MPCB Formula =P1 x N x R x S x LF Compensation in Rs. EC compensation =100 x 6586 x 500 x 1.5 x 1.5 74,09,25,000/- CTE compensation =100 x 6586 x 500 x 1.5 x 1.5 74,09,25,000/ - CTO Compensation =100 x 6213 x 500 x 1.5 x 1.5 69,89,62,500/-
Total Compensation for not Obtaining prior EC, 218,81,2500/ - CTE & CTO
27. Besides, applicant has also made calculation regarding illegal excess construction of more than 41,500 M2, which was made beyond the permission granted by the PMC and is amounting to Rs.90,21,68,500/-. Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 16 of 50 Therefore, total amount of EDC is assessed to be Rs.308,29,81,000/- (Three Hundred Eight Crores Twenty Nine Lakhs Eighty One Thousands Only), which has been rounded to Rs.400/-Crores, to be levied from the respondent No.11- Project Proponent. We find that rest of the averments made in this rejoinder affidavit appear to be nothing but repetition of earlier averments, which we have already cited above.
28. Respondent No.1- MoEF&CC has filed reply affidavit dated 13.09.2022, wherein it is submitted that OM dated 07.07.2021 was issued by the answering respondent as per the direction of this Tribunal dated 24.05.2021, wherein following direction was given:
"(...) A proper SOP be laid down for grant of EC in such cases so as to address the gaps in binding law and practice being currently followed. The MoEF may also consider circulating such SOP to all SEIAAs in the country."
That it is respectfully submitted that Hon'ble National Green Tribunal in OA 287 of 2020 in matter titled Dastak NGO vs. Synochem Organics Pvt. Ltd. &Ors observed that:
"(...) 9. We are of the view that since prior EC is statutory mandate, the same must be complied. We have no doubt that the stand of the private respondents will be duly considered by the concerned regulatory authorities, including the MoEF&CC on merits and in accordance with law but till compliance of statutory mandate, the units cannot be allowed to function. For past violations, the concerned authorities are free to take appropriate action in accordance with polluter pays principle, following due process."
29. It is further mentioned in this affidavit by the respondent No.1- MoEF&CC that the said OM was challenged before the Hon'ble Madras High Court in WP (MD) No.11757 of 2021 (Fatima Vs Union of India). Thereafter, question which came up for consideration was, as to whether the Environmental Clearances (ECs), which are imperative for certain projects/activities, can be granted ex-post-facto i.e. post project or commencement of project? The Hon'ble Madras High Court after having taken into consideration the Judgments of Hon'ble Supreme Court Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 17 of 50 delivered in (i) Lafarge [Lafarge Umiam Mining Private Limited Vs. T.N. Godavarman Thirumulpad reported in (2011) 7 SCC 338] rendered by a three member Benchon 06.07.2021; (ii) Common Cause [Common Cause Vs. Union of India reported in (2017) 9 SCC 499] rendered by a two member Bench on 02.08.2017; (iii) Alembic [Alembic Pharmaceuticals Limited Vs. Rohit Prajapati reported in (2020) 17 SCC 157 rendered by a two member bench on 01.04.2020; (iv) Electrosteel [Electrosteel Steels Limited Vs. Union of India and others reported in (2023) 6 SCC 615] rendered by a two member bench on 09.12.2021; (v) Pahwa Plastics [Pahwa Plastics Pvt. Ltd. Vs. Dastak NGO and others reported in 2022 SCC OnLine SC 362] rendered by a two member bench on 25.03.2022; and (vi) D.Swamy [D.Swamy Vs. Karnataka State Pollution Control Board reported in 2022 SCC OnLine SC 1278] rendered by two member Bench on 22.09.2022, decided to quash /set aside the OM dated 07.07.2021 issued by the MoEF, prospectively. Relevant part in this regard is quoted herein below:-
"28. We are resorting to the doctrine of prospective overruling in the captioned matter. While initially the doctrine was confined to matters arising under the Constitution, later on it has been applied to other areas of law as well. The reason of applying the doctrine of prospective overruling in the case on hand is, projects / industries which are already functioning are in the anvil of commencing operations or for that matter, projects / industries which are awaiting ex post facto EC will be inputting the clock back situation. Besides putting the clock in the clock back situation, as regards projects / industries which are in the anvil of being operationalized, the same may result in deleterious situation after being lulled into the belief that ex post facto EC is available. There is another reason as to why we are resorting to prospective overruling and that is, it is quite possible that ex post facto EC applications of project proponents who are not before this Court are under active consideration. We make it clear that prospective overruling is resorted to with regard to statutory provisions and when a future date is fixed. We are not fixing a future date and we are dealing with executive fiats in the case on hand and therefore, we are mentioning about prospective overruling legal mechanism only as a buttressing factor."Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 18 of 50
30. The above-mentioned citation has also been relied upon by the learned counsel for respondent No.11- Project Proponent.
31. It is further mentioned in this affidavit by the respondent No.1- MoEF&CC that following was held by the Hon'ble Supreme Court in Civil No.7576-7577 of 2021 (Electrosteel Steels Limited vs UOI):-
"85. The interim order passed by the Madras High Court appears to be misconceived. However, this Court is not hearing an appeal from that interim order. The interim stay passed by the Madras High Court can have no application to operation of the Standard Operating Procedure to projects in territories beyond the territorial jurisdiction of Madras High Court. Moreover, final decision may have been taken in accordance with the Orders/Rules prevailing prior to 7th July, 2021."
32. It is further mentioned in this affidavit by the respondent No.1- MoEF&CC that in Civil Appeal No.4494/2022 in the matter of Ekta Housing Private Limited vs. Tanaji Gambhire, Hon'ble Apex Court again confirmed the procedure laid down under the SOP dated 07.07.2021, regarding which respondent No.1 has provided a copy of the above-mentioned order dated 14.07.2022, which is annexed at page nos.1063 to 1064 of the paper book, which is quoted herein below:-
"The appeal is admitted.
Mr. Mukul Rohatgi, learned senior counsel submits that his clients will pay penalty of 1% and additional penalty of 0.25% imposed by the Ministry of Environment Forests and Climate Change (MOEF&CC) as a condition for grant of ex-post facto Environmental Clearance (EC).
The application dated 08.02.2022 of the Appellant for ex-post facto Environmental Clearance may be considered expeditiously subject to payment of penalty of 1% and an additional penalty of 0.25%, as aforesaid.
There will, however, be stay of the impugned order insofar as compensation of 10% (Rs. 15.99 Crores) has been imposed on the Appellant."Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 19 of 50
33. It is further mentioned in this affidavit by the respondent No.1- MoEF&CC that pursuant to the above-mentioned orders of Hon'ble Madras Court as well as the order of Hon'ble Supreme Court in Electrosteels Limited's case (supra), OM dated 28.01.2022 was issued by the respondent No.1, wherein following is recorded:-
"The Ministry issued a Standard Operating Procedure dated 7th July 2021 bearing the file number 22-21/2020-IA.III, for identification and handling of violation cases under EIA Notification 2006 in compliance to order of the Hon'ble National Green Tribunal in Appeal No. 34/2020 (WZ) titled Tanaji B. Gambhire Vs Chief Secretary, Government of Maharashtra. The copy of the SoP is enclosed for ready reference.
2. The SoP was challenged in the Madurai Bench of the High Court of Madras in the matter W.P.(MD) No. 11757 of 2021 titled Fatima Vs Union of India and was interim stayed vide order dated 15th July 2021.
3. Recently, in the Order dated 09th December 2021 in the matter of Civil Appeal Nos. 7576-7577 of 2021 in Electrosteel Steels Limited Vs Union of India and Ors., the Hon'ble Supreme Court of India has inter-alia observed the following:
"93. The interim order passed by the Madras High Court appears to be misconceived. However, this Court is not hearing an appeal from that interim order. The interim stay passed by the Madras High Court can have no application to operation of the Standard Operating Procedure to projects in territories beyond the territorial jurisdiction of Madras High Court. Moreover, final decision may have been taken in accordance with the Orders/Rules prevailing prior to 7thJuly, 2021."
4. The copy of the order which is self-explanatory is enclosed herewith for necessary action."
34. Thereafter, Hon'ble Supreme Court vide order dated 02.01.2024 passed in Writ Petition (Civil) No.1394/2023 (Vanashakti vs. Union of India) has stayed the operation of the OMs dated 07.07.2021 and 28.01.2022 issued by the Ministry of Environment, Forest and Climate Change. Pursuant to that, answering respondent issued following OM dated 08.01.2024:-
Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 20 of 50
"
"Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 21 of 50
35. It is apparent from the above-mentioned Judgment and OMs that as on date, OM dated 07.07.2021 has been stayed by the Hon'ble Supreme Court vide its order dated 02.01.2024 passed in Writ Petition (Civil) No.1394/2023. Therefore, question arises as to whether the said OM would be applicable in the case in hand for adopting the procedure for grant of ex-post-facto EC or not.
36. We may make it clear hear that the present matter is an Original Application and not an appeal, wherein grievance raised by the applicant pertains to the respondent No.11- Project Proponent not having obtained prior EC from the SEIAA before raising the construction at the site in question, which was much more than 20,000 sq. mtrs. threshold limit and did require prior EC to be obtained as per the EIA Notification, 2006. Therefore, it is an admitted case of violation.
37. It is also apparent from the perusal of record that Project Proponent had applied for ex-post-facto EC on 05.05.2022 i.e. prior to the date of Judgment passed by the Hon'ble Madras High Court as well as prior to the date of order passed by the Hon'ble Supreme Court staying the operation of the OM dated 07.07.2021. Therefore, till these Judgments/Orders were pronounced, position of law would be taken to be that the SOP provided under OM dated 07.07.2021 was in force as per the order of Hon'ble Supreme Court delivered in Electrosteel's case (Supra). In the light of the interpretation made by the Hon'ble Madras High Court, which has quashed the OM dated 07.07.2021, the same has been directed to be effective prospectively i.e. after the date of delivery of the Judgment, making it clear whatever projects, which were already under consideration for grant of ex-post-facto EC under Violation Category, were to be processed by the SEIAA but any new matter post the stay of that Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 22 of 50 Judgment, wherein violation was found to be there, could not have been entertained by the SEIAA. Therefore, we are of the opinion that in the case in hand, we can permit for following of SOP provided under the OM dated 07.07.2021, as the application was moved by the Project Proponent much prior to the above two dates of Judgments/Orders and that we can pass the final order in this matter subject to final Judgment to be passed by the Hon'ble Supreme Court in Vanashakti's Case (supra).
38. Learned counsel for applicant has argued that the Joint Committee Report, which is annexed at page no.247 onwards of the paper book, clearly reveals that by the date of inspection, as per the Architect Certificate, it was observed that Project Proponent had carried out construction activity of total BUA 32,651.61 sq. mtrs. on above plot, which required prior EC under EIA Notification, 2006 dated 14.09.2006, which had not been obtained nor had the Project Proponent obtained Consent to Establish and Consent to Operate under Water (Prevention and Control of Pollution) Act, 1974 and Air (prevention & Control of Pollution) Act, 1981. Besides, regarding two bore-wells in the premises, Project Proponent had not obtained permissions for the extraction of ground water from the CGWA; the STP, which was of 70 KLD capacity, was found not in operation at the time of inspection; OWC unit was not found installed; Project Proponent has installed two DG Sets of 80 KVA & 25 KVA capacities without obtaining consent from the MPCB and additionally, DG Set of capacity 25 KVA was not found in operation. Since all the buildings had already been constructed, the Committee was unable to give details of soil preservation for the said building and drawn water test reports. Since above-mentioned violations were noted by the Committee, it is urged by the learned counsel for applicant that heavy penalty is required to be levied from the Project Proponent on these counts.
Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 23 of 50
39. Thereafter, learned counsel for applicant has drawn our attention to page no.4203 of the paper book, wherein Minutes of 267th Meeting of the SEIAA held on 19.10.2023 are annexed, in which total BUA of the project is shown to be 50,548.37 sq. mtrs. and thereafter, our attention is drawn by him to page no.4226 of the paper book, which is in continuation of the same document, in which in the deliberation of SEIAA, it is recorded that total BUA of the project in question was found to be 50,548.37 sq. mtrs. Therefore, learned counsel for applicant has urged that EDC amount should be levied to the tune of Rs.26,83,96,875/- (Twenty-Six Cores Eighty-Three Lakhs Ninety-Six Thousand Eight Hundred Seventy-Five only) and the period of violation, for which this amount has been calculated by the applicant should be from 08.01.2007 to 18.01.2019, as there was no Consent to Establish for that period nor was there any EC. As regards CTO, period of violation is recorded by him to be 04.12.2009 to 31.12.2021. Thereafter, he also took us to page no.4204 of the paper book, wherein total project cost is recorded to be Rs.50.21 Crores. Therefore, it is urged by him that the principle, which has been laid down by the Hon'ble Supreme Court in Goel Ganga's case, should be invoked on the project cost, which is cited above i.e. 10% of the project cost or Rs.100 Crores, whichever is more. He states that whatever amount of EDC for lack of Consent to Establish and Consent to Operate has been calculated by the SEIAA, following the SOP provided under OM dated 07.07.2021, cannot be accepted because that is on the lower side and that the principle laid down by the Hon'ble Supreme Court in Goel Ganga's case (supra) should be followed and deterrent amount of EDC should be levied from the Project Proponent.
40. From the side of respondent No.11- Project Proponent, main emphasis laid down by the learned counsel is that since the application for ex-post-facto permission had already been moved by the Project Proponent Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 24 of 50 on 05.05.2022 and Project Proponent had already taken several steps to save the environment, which were to be taken in its project, therefore, whatever calculations have been made with respect to the amount of EDC as well as for not obtaining Consent to Establish and Consent to Operate should only be levied and not on the basis of principles laid down by the Hon'ble Supreme Court in Goel Ganga's case. He has taken us through the calculations, which have been made by the SEAC and the recommendations of which have been accepted by the SEIAA and not only have they been accepted, rather SEIAA decided to grant ex-post-facto permission in 267th Meeting held on 19.10.2023. But it is apparent that formal order to that effect is yet to be issued. It would be appropriate for us to reproduce the said calculations made by the SEIAA, as follows:- Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 25 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 26 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 27 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 28 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 29 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 30 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 31 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 32 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 33 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 34 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 35 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 36 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 37 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 38 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 39 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 40 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 41 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 42 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 43 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 44 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 45 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 46 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 47 of 50 Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 48 of 50
41. We find from the above that total number of days of violations, which have been counted by the SEIAA in its MoM dated 19.10.2023 at serial no.9 (annexed at page no.4210 of the paper book), are shown to be 6083 days, based on a very meticulous calculation done by the expert bodies i.e. SEAC and SEIAA, while calculating violation with respect to air and water pollution, cost of sewage treatment and re-use and disposal of the same, all have been taken into consideration and thereafter, following the SOP dated 07.07.2021, the total amount of Rs.237.2 lakhs has been arrived at towards the effective implementation of Remediation Plan and Natural and Community Resource Augmentation Plan, which is to be implemented within six months from the grant of EC and the amount of penalty is also separately computed to be Rs.74.18 lakhs.
42. In view of above, we do not find any infirmity in the calculation made above by the SEAC and SEIAA and find that the same has been done by the expert bodies meticulously, therefore, we are in agreement with the same and there is no apparent error shown by the learned counsel for applicant except saying that this is on the lower side and that the guidelines laid down in Goel Ganga's case should be applied for in the present case to calculate the amount of EDC. But we are in disagreement with the view expressed by the learned counsel for applicant because here the procedure, which was prescribed by the OM dated 07.07.2021, has been followed, which was existing on the date of filing of this application, as per which the said calculation has been done and that the same was not stayed till then by the Hon'ble Supreme Court and even the Hon'ble Madras High Court has quashed the said OM prospectively and not retrospectively.
Original Application No.65/2019(WZ) [I.A. No.102/2019(WZ)] Page 49 of 50
43. We dispose of this application accordingly with a direction that EDC of Rs.237.2 lakhs shall be deposited by the respondent No.11-M/s. Bramhacorp. Ltd./Project Proponent with the Pune Municipal Corporation (PMC) within one month from the date of uploading of this Judgment for implementation of remediation plan, approved by SEIAA. Respondent No.11 shall also deposit penalty amount worked out by the SEIAA as Rs.74.18 lakhs with the MPCB within a period of one month from the date of uploading of this Judgment and that the said amount be utilized for improving the environment in the area concerned.
44. All pending applications, if any, also stand disposed of.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM November 29, 2024 Original Application No.65/2019(WZ) I.A. No.102/2019(WZ) P.Kr.
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